Discussion of Family Law Appeals in Harris, Montgomery, Fort Bend, Brazoria Counties & Across Texas

The Pope Trilogy of ’67

The estimable Texas Supreme Court Justice Jack Pope (b. 1913) authored Slavin and the majority opinions in the first two cases which cited it in 1967, Ex parte Hooks, 415 S.W.2d 166 (Tex. 1967) and Ex parte Conway, 419 S.W.2d 827 (Tex. 1967). Justice Pope was appointed Chief Justice of the Texas Supreme Court in 1982 (the position in which he served until his retirement in 1985) but in 1967, when Slavin was handed down, he was just an associate justice who had been on the court for two years.

Slavin was issued on March 1, 1967. Its successor, Ex parte Hooks, three weeks later on March 22. While Slavin was evidently unanimous, Hooks was quite controversial with four justices dissenting and two justices, Justice Smith and Chief Justice Calvert, filing dissents. The first dissent, authored by Justice Smith, was joined by three other Justices–Chief Justice Calvert, and Justices Smith, Greenhill, and Steakley. The second dissent was authored by Chief Justice Calvert and joined by Justices Greenhill and Steakley. (Thus Justice Smith did not join the Chief Justice’s dissent for whatever reason.)

In fact, Slavin is not cited by the Pope-written majority, but by Chief Justice Calvert in the second dissent (making the title of this blog post a bit of a cheat). The majority did not cite Slavin because the relator did not challenge the specificity of the language of the underlying contempt judgment. Earl Hooks, like Eugene Slavin, had been ordered to make child support payments until his children turned eighteen. He had fallen behind in his payments and, before the children turned eighteen, was found in contempt for a sum certain of arrears. Indeed, the judgment held him in continuing contempt until such arrears were paid in full. Mr. Hooks dutifully made monthly payments until the children turned eighteen whereupon he argued the district court lacked authority to enforce the judgment. The sole issue asserted in his original habeas corpus proceeding was whether or not the district court could enforce the judgment after the children turned eighteen. Reviewing Article 4639a, the controlling statute at the time, the majority found it could. It also noted that to hold otherwise would reward a spouse behind on payments for hiding out and evading service until the children reached eighteen. “We should cautiously attribute such reasoning to the Legislature.”

The first dissent, authored by Justice Smith and evidently joined by the other three dissenting justices, argued the contempt judgment was not enforceable by contempt because it was an agreed judgment. This strikes me as an odd argument as the contempt judgment–whether agreed or not–clearly states repeatedly that Mr. Hooks was in contempt. I look forward to seeing if this distinction is ever raised in future cases. Further, the dissent admonishes Mr. Hooks’ former spouse, perhaps stridently, for “harassing” him with a contempt action when she “should have filed a suit in [sic] behalf of the child to collect the $4,070.00 delinquency.” I doubt this course would have been fruitful, however, as Ms. Hooks had already filed the enforcement action to find him in contempt in the first place. Even if she had taken that course and procured a judgment, she would still need to enforce it, which is where she was before she filed her contempt action.

The second dissent, authored by Chief Justice Calvert and joined by two other justices, argued that the contempt judgment was void for two reasons: 1) the judgment was not definite and certain enough; and 2) the trial court lost jurisdiction of the subject matter when the contempt judgment was entered. As mentioned above, Mr. Hooks’ sole issue in his habeas proceeding was whether or not the district court had jurisdiction to enforce the contempt judgment after the children turned eighteen, and did not contest whether or not the contempt judgment was specific enough. Obviously, Mr. Hooks would (almost certainly) not be able to argue that the judgment did not comply with Slavin because Slavin was issued just three weeks before the opinion in Ex parte Hooks. Nonetheless, Chief Justice Calvert argues the contempt judgment was void and cites the Slavin opinion in support. Indeed, had Mr. Hooks argued that the contempt judgment was insufficiently specific, he might have been successful because, as Chief Justice Calvert states, the language of the contempt judgment is not exactly crystal clear.

Six months after the Supreme Court issued Ex parte Hooks, the court issued its unanimous opinion in Ex parte Conway, 419 S.W.2d 827 (Tex.1967). Conway is not a family law case, but an outgrowth of a dispute over a thirty-foot strip of land. The trial court found relators in contempt for violation of an expired temporary order or, stated another way, there was no order which extended the injunction to the time of the violation. The Supreme Court agreed, citing Slavin for the proposition that unless the relator has notice, he cannot be held in contempt which is a much broader point than Slavin‘s demand for clear, unambiguous contempt orders.

Thus at the close of 1967, Ex parte Slavin had been cited twice, but once in a dissent and once in a non-family law case but not for propositions concerning the necessary specificity in the language of contempt orders.